June 21, 2012

More Mythbusting About Texas Medical Malpractice “Tort Reform”

I have a prediction. If the U.S. Supreme Court upholds the health care law, the same people in Congress who have tried to push down our throat the anti-patient federal med mal bill (H.R. 5) will try again. If the U.S. Supreme Court strikes down the health care law, the same people in Congress who have tried to push down our throat the anti-patient federal med mal bill (H.R. 5 ) will try again. In case that wasn’t clear: this is probably going to happen no matter what the Court does. When facts and grounds are fabricated to begin with, who needs actual rationales?

Because if anyone wanted to understand facts, they could look no further than the recent unassailable academic work examining the impact of Texas’ anti-patient 2003 medical malpractice law. This work has been done by Myungho Paik (Northwestern University - School of Law), Bernard S. Black (Northwestern University - School of Law, Northwestern University - Kellogg School of Management, and European Corporate Governance Institute), David A. Hyman (University of Illinois College of Law) and Charles SilverUniversity of Texas at Austin - School of Law). That's two Republicans, a Democrat and a foreign national, in case you’re wondering, and the study was paid for by the researchers’ universities and published in the Journal of Empirical Legal Studies.)

Today, the Austin American-Statesmanis covering one of their recent studies, which finds “no evidence that health care costs in Texas dipped after a 2003 constitutional amendment limited payouts in medical malpractice lawsuits, despite claims made to voters by some backers of tort reform.” In fact, the authors found “some evidence of increased physician spending in high-risk counties.” (High risk counties have higher claims rates.)

In addition, the authors compared “spending trends in Texas to national trends.” Author David Hyman, who worked on health policy for President George W. Bush at the Federal Trade Commission, said, “we found no evidence that Texas spending went up slower in comparison to all other states and may have had an increase.” Author Bernard Black noted, “their study suggests that Medicare payments to doctors in Texas rose 1 to 2 percent faster than the rest of the country.”

As the American-Statesmannotes, this is all very consistent with other reports, like the one from Public Citizen late last year. And see the Center for Justice & Democracy’s fact sheet summarizing the authors’ other recent mythbusting study about Texas physician supply – or rather lack it –since caps were enacted.

The researchers assumed that doctors who faced a higher risk of being sued — those in counties that had larger numbers of malpractice cases — would perform more tests and procedures than necessary to protect themselves from lawsuits. With tort reform, which limited damage awards against doctors, the need to practice such “defensive medicine” would decline, the argument goes.

But in comparing Texas counties in which doctors faced a higher risk of lawsuits with counties where the risk was lower, the researchers found no difference in Medicare spending after tort reform and indications that doctors in higher- risk counties did slightly more procedures.

“If tort reform reduces spending, it would have the biggest effect on high-risk counties,” Silver said. He noted that those tend to be large and urban.

"This is not a result we expected," said Bernard Black, a co-author and a professor at Northwestern University's Law School and Kellogg School of Management.

However, the findings were no surprise to experts like Tom Baker, Deputy Dean and William Maul Measey Professor of Law and Health Sciences at University of Pennsylvania Law School, who noted, “This is a very highly regarded study, and this team is highly regarded. Their results didn’t surprise me at all."

On the other hand, Rick Perry disagrees. What more support do you need?

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